Murithi v Wakhu & another (Environment and Land Appeal 25 of 2023) [2024] KEELC 1534 (KLR)
The bottom line
#A Kenyan court dismissed an appeal and upheld a Kshs.12 million damages award, ruling that building on someone's land while a court order forbids it is at your own risk.
What this practically means
#Executive summary
#Key legal issues
#Proof of trespass and the burden of proof
The respondents discharged the burden of proving ownership of Plot No. 172 A II and the appellant's encroachment through the county register of plots and the physical planner's report (P. Exh No. 5); the appellant produced no survey report to justify his claim of a 20ft by 80ft plot.
The respondents relied on the primary register of plots held by the County Government of Meru and the site visit report tracing the history of the plots. PW 3 explained the attempted illegal alteration of the register increasing the appellant's plot size. The appellant's documents lacked dates, court stamps and maker testimony, and no beacon certificate was produced. The court applied the principle that trespass requires proof of ownership and intrusion without consent.
Disobedience of interim injunctive orders
The appellant knowingly breached standing injunctions by erecting permanent buildings on the disputed portion and obtaining approvals during their pendency.
Interim injunctions issued on 7.7.2014 and 7.11.2014, extended and reinforced on 16.8.2017, prohibited construction. The appellant thrice sought their variation unsuccessfully yet termed them 'fake' in evidence. His approvals and NEMA licences were procured after the suit was filed and during the pendency of the orders, as an attempt to justify the encroachment. The court held such a party takes the risk of loss.
Quantum of general damages for trespass
The award of Kshs.12,000,000/= was not unreasonable, being derived from the appellant's own admission of a building worth Kshs.16,000,000/= and monthly rental income of Kshs.250,000/=.
Although no direct evidence of the value of the converted land was tendered, the appellant admitted in his evidence that he had put up a storeyed building worth Kshs.16,000,000/= and collected Kshs.250,000/= monthly rent for over eight years. Guided by the principle that an appellate court will not disturb an award unless inordinately high or low or based on wrong principles, and given the appellant's contemptuous conduct, the award stood.
Legal principles established
#- Trespass is actionable per se; once proved, no specific damage or loss need be shown
- A claimant in trespass must prove ownership and invasion of the property without consent or justification
- A party who builds in disregard of a court order takes the risk of loss if the owner insists on his rights
- A party who fails to call evidence in support of his case risks leaving his claim unsubstantiated
Court orders
#- 1.Prayers (a) & (b) of the plaint confirmed
- 2.A notice of eviction issued for the appellant to hand over vacant possession of the 5ft portion of 2nd respondent's Plot No. 172 A II within three months, in default of which eviction and demolition orders shall issue
- 3.The appellant shall meet the costs of any eviction or demolition exercise
- 4.Costs of the appeal to the respondents
- On appeal from
- Chief Magistrates Court, Meru (trial court; matter previously before an ELC court)
- Lower court suit over Plot No. 172 A I & 172 A II Nkubu market (number not stated)
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over the trial court's judgment (appeal against judgment delivered 10.3.2023)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murithi v Wakhu & another (Environment and Land Appeal 25 of 2023) [2024] KEELC 1534 (KLR)", Case Analysis (2024). ELC Appeal No. 24 of 2018 (as referenced in the judgment; the record is ambiguous). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1534/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.